Postcard from China: Creative Commons launches in Hong Kong

Criminalising “pirates” corrodes rule of law, Lessig warns

Current copyright law and business attitudes need to adapt to the changed technical realities of the digital age in order to end a “copyright war” that criminalises an entire generation of young media users, said Stanford University copyright law expert Lawrence Lessig.

On the effect of criminalizing media users

On the need to deregulate culture

On the need for a useful copyright register

On ending the war on piracy

Lessig, who founded Creative Commons in 2001, spoke at the University of Hong Kong on the eve of the launch Creative Commons Hong Kong last weekend. The administrative region of China is the 50th jurisdiction worldwide to localise the Creative Commons license.

“We can’t kill the technology; we can only criminalize its use. We can’t stop our kids from being more creative than we ever were, we can only drive their creativity underground”, he said. But this would get them used to consciously living against the law as “pirates”, thereby “corrupting the very basic values […] of a free society”.

According to Lessig, the problem with current copyright law is that it conflicts with digital technology. With physical goods like books, copyright allows a wide range of uses and only criminalises unauthorized copying. But with digital media, every single use of these media in effect constitutes copying, and is therefore regulated by copyright law. This, Lessig said, leads to the criminalisation and suppression of much creative use of copyright-protected material that is available online.

“In the digital age, this architecture is insane,” he said. “Instead the law has got to focus on meaningful commercial activities” to guarantee the creator is paid a fair share. “Copying in the digital age is not ‘meaningful’. It is like regulating breathing.”
Lessig emphasised that he wants to reform copyright, not abolish it. “I believe copyright is an essential part of a creative culture, especially in the digital age,” he said.

Businesses must also change their attitudes, he said. Instead of fighting a “copyright war” against the creative use of copyrighted material, they should harness the creativity that the Internet enables. This would mean recognising and rewarding those creating new material, but also rethinking the use of intellectual property rights.

“We have got to stop treating intellectual property as a religion; instead it is an asset that needs to be deployed to maximize value to the company”, Lessig said.

While infringement of intellectual property rights is costly to the entertainment industries in particular, scholars argue that even greater damage is done by preventing people from accessing, sharing and modifying cultural goods. Examples like Youtube and Flickr show that there is an immense potential for people to be creative with materials that they find online, Lessig said.

Creative Commons as a solution?

Creative Commons, Lessig says, provides a legal tool to address these problems. It is a set of standardised copyright licenses that occupy a middle ground between full copyright (all rights reserved) and public domain (no rights reserved). For instance, an artist could share his work freely but under the condition that it can neither be used for profit nor modified.
One aim of this license set is that cultural goods become cheaper and therefore much more widely available to people who can in turn use these goods to become creative themselves. This increase in cultural production, some scholars say, may actually outweigh the losses from business that would occur if their monopoly incentive was reduced by the rolling back of copyright protection.
Giving people free and legal access to these goods would also have the effect of de-criminalising a whole generation of “pirates”, Lessig said. This would prevent them from developing a distaste for the rule of law in general.
Another goal is to help creators to receive fair compensation if their work is used by someone else for profit. If creators publish their work for free in the public domain, they have no legal means of making sure that their work will not be appropriated or misused by somebody else.

The idea of attribution, which is part of all Creative Commons licenses, builds on the idea of a “reputation economy”. The intuition here is that marking their work with their names and sharing it freely is a very effective way of promoting their talent. The long-term benefits of this positive reputation may outweigh the short-term revenue of selling their work to a much smaller audience.
According to Creative Commons, 130 million works had been licensed under one of their licenses. The legal specifications have been ported to the copyright laws of 50 countries, among them 20 member states of the European Union.

The introduction of Creative Commons to Hong Kong, in this case, means adopting the licenses to the local copyright law so that they can be enforced in Hong Kong courts.

Expanding the concept

Creative Commons plans to expand its concept of copyright flexibility beyond digital media, CEO Joichi Ito said at the launch ceremony.Science Commons, for example, aims to facilitate the exchange of physical samples, like DNA, among scientists and universities. Neuro Commons, one of the Science Commons sub-projects, is an attempt to make not only documents, but the contents of databases, easily searchable, Ito said. “We are very good at indexing documents, but we are very bad at indexing knowledge.”

“It’s pretty low-hanging fruit: The funders want ... to work together, the researchers want ... to work together. There is really no good reason why we shouldn’t be sharing at that level. There isn’t some kind of Hollywood that we are fighting against here – it’s just plain stupid friction that we’re fighting with.”

In the future, Ito wants to make use of RDF, an extension to XHTML which will show the user of a given digital document who created it by drawing on the code embedded in the document. This will make authorship even more transparent and increase the incentive to publish work under a Creative Commons license, Ito said.

Cornelius Rahn

Cornelius Rahn is a freelance contributor at the EJC. He graduated in 2008 from Maastricht University with a bachelor's degree in European Studies. He is at present studying journalism at the University of Hong Kong. He is interested in freedom of the Internet and the development of the media sector in developing countries.